(Oxford University Press, 2017)
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Against Marriage is a radical argument for the abolition of state-recognised marriage. Clare Chambers argues that state-recognised marriage violates both equality and liberty, even when expanded to include same-sex couples. Instead Chambers proposes the marriage-free state: an egalitarian state in which religious or secular marriages are permitted but have no legal status.
Part I makes the case against marriage. Chambers investigates the critique of marriage that has developed within feminist and liberal theory. Feminists have long argued that marriage is a violation of equality since it is both sexist and heterosexist. Chambers endorses the feminist view and argues, in contrast to recent egalitarian pro-marriage movements, that same-sex marriage is not enough to make marriage equal. Chambers argues that state-recognised marriage is also problematic for liberalism, particularly political liberalism, since it imposes a controversial, hierarchical conception of the family that excludes many adults and children.
Part II sets out the case for the marriage-free state. Chambers critically assesses recent theories that attempt to make marriage egalitarian, either by replacing it with relationship contracts or by replacing it with alternative statuses such as civil union. She then sets out a new model for the legal regulation of personal relationships. In the marriage-free state regulation is based on relationship practices not relationship status, and these practices are regulated separately rather than as a bundle. The marriage-free state thus employs piecemeal, practice-based regulation. Finally, Chambers considers how the marriage-free state should respond to unequal religious marriage. The result is an inspiring egalitarian approach that fits the diversity of real relationships.
Introduction: “The Marriage-Free State”
Chapter 1: “Marriage as a Violation of Equality”
Chapter 2: “Marriage as a Violation of Neutrality”
Chapter 3: “A Liberal Defence of Marriage?”
Chapter 4: “The Limitations of Contract”
Chapter 5: “Regulating Relationships in the Marriage-Free State”
Chapter 6: “Marriage in the Marriage-Free State”
Part One, “Against Marriage,” sets out objections to marriage regimes. Chapter 1, “Marriage as a Violation of Equality,” makes the foundational egalitarian case against marriage. It starts with a historical overview of feminist objections to marriage and notes that feminists tend to criticise marriage for being both sexist and heterosexist. This two-pronged attack looks puzzling. How can it be both bad for women to be married and bad for lesbians and gays to be unmarried? The discussion continues with an analysis of whether same-sex marriage is egalitarian. It concludes that, in a marriage regime, same-sex marriage is both required by and insufficient for equality. Finally, the chapter argues that reformed versions of marriage such as civil union still enact inequality between those who have and those who lack the relevant status. It follows that the abolition of state-recognised marriage best meets the myriad egalitarian objections to the institution.
Chapter 2, “Marriage as a Violation of Liberty,” considers liberal objections to marriage. Perfectionist or comprehensive liberals should reject state-recognised marriage as limiting autonomy in the service of an unappealing and restrictive model of human perfection. But political liberals should go further, and reject state-recognised marriage as prima facie incompatible with neutrality. The chapter clarifies the nature of political liberal neutrality, and establishes that there are many reasonable conceptions of the good that are not compatible with the state recognition of marriage. This fact means that marriage is not a neutral, political institution, and that promotion of it is an act of perfectionism.
The chapter then discusses the idea that political liberalism might be compatible with policies that are prima facie non-neutral if those policies can be supported by public reason. Political liberalism is ambiguous between two forms of neutrality: strict and lax. Strict neutrality allows state action only if sufficiently weighty public reasons can be adduced in favour of a policy; lax neutrality permits the state to act just as long as some public reason can be given. If political liberalism is to be an interesting philosophical approach it will defend strict neutrality, so any public reasons offered in support of state-recognised marriage must be weighty enough to overcome the non-neutrality of that institution.
This line of argument continues in Chapter 3, “A Liberal Defence of Marriage?” This chapter considers and rejects five potential liberal arguments in favour of marriage: arguments that, if successful, might work as public reasons for political liberals or might make marriage into an attractive account of human flourishing for perfectionist or comprehensive liberals. These arguments are based on communication, gender equality, care, the interests of society, and children’s interests. The chapter argues that, while these arguments do highlight legitimate public goods, they fail to show that state-recognised marriage is a necessary or acceptable way of achieving them.
If marriage is no longer to be recognized by the state, what should replace it? Part Two, “The Marriage-Free State,” answers this question. Many theorists defend relationship contracts. Some argue that enforceable relationship contracts should be available alongside existing or reformed state-recognised marriage, and available to either married or unmarried couples. Other theorists argue that relationship contracts are the best sort of legal regulation to replace marriage. It is this latter question that is the subject of Chapter 4: “The Limitations of Contract.” The chapter contrasts contract and directive models of regulation, and notes that contract appears more compatible with liberty than does directive. However this appearance is illusory since contracts can undermine liberty, directives can enhance liberty, and even a contract regime requires default directives. Moreover, there are various problems with the enforcement of relationship contracts. Specific performance is rarely appropriate in the relationship context. The alternative, fault-based compensatory alimony, risks causing injustice to vulnerable parties such as those who take on caring responsibilities (usually women) and children. Relational contract theory attempts to deal with some of these problems but has its own limitations. The chapter concludes that contract is not the best replacement for marriage.
Chapter 5, “Regulating Relationships in the Marriage-Free State,” sets out a new model for regulating personal relationships, one that relies on neither contract nor a holistic status such as marriage or civil partnership. Critics of marriage have suggested one of these two options, with most recent feminist and egalitarian work focusing on alternative holistic statuses such as Tamara Metz’s Intimate Care-Giving Unions or Elizabeth Brake’s Minimal Marriages. These new holistic statuses, while they improve on marriage, do not avoid a fundamental problem for egalitarians: an unjust distinction between those who have, and those who lack, that status. Instead, the chapter sets out three features of regulation in the marriage-free state. First, it is piecemeal not holistic: relationship functions are regulated separately, without assuming bundling or an ideal-typical relationship format. Second, it proceeds via practices not status: regulation applies to those who are acting in certain ways rather than being dependent on a status that must be formally acquired. Third, liberty is secured by opting out of default regulations rather than opting in. This model of regulation is compared with alternatives found in both political philosophy and legal practice.
Finally Chapter 6, “Marriage in the Marriage-Free State,” considers the extent to which the state should seek to regulate any private religious or secular marriages that citizens might enter into. In the marriage-free state citizens could still take part in religious or secular marriage ceremonies. This is why the marriage-free state is not a marriage-free society. It does not follow, however, that the state should take no interest at all in such marriages, since they may take place in the context of oppression or injustice. The chapter sets out the case for intervention in marriages that are not recognised by the state, drawing on the model of liberal intervention in cultural practices set out in my first book Sex, Culture, and Justice: The Limits of Choice.